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Research On Plaintiff Qualification Of Administrative Litigation

Posted on:2010-03-05Degree:MasterType:Thesis
Country:ChinaCandidate:H DangFull Text:PDF
GTID:2166360275499581Subject:Constitution and Administrative Law
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The issue of plaintiff qualification in administrative litigation is not only a basic theoretical issue in the administrative litigation law, but also an issue closely related to the judicial practice. The plaintiff qualification in administrative litigation is one of the basic problems in administration lawsuit. It makes a direct effect on the protection to the litigant's rights and the supervision to the administration behavior. At the same time it is controversial and complicated in theory and practice. Since the administration litigation system is founded in our country, the research has been very weak. As a result, the legislation is not perfect and the plaintiff qualification is enlarged or narrowed improperly. So the system can not give full play to it's function. It is imperative to make a thorough inquiry into the plaintiff qualification of administration litigation.The legal meaning of studying the qualification of plaintiff in administrative litigation, lies in perfecting political system and power structure of country; making regulation and judicial authority of plaintiff's qualification in administrative litigation adapt administration judicial state of the country, improving people's legal consciousness, promoting administration to be developed to the scientific respect, coordinating the relation of individual interests, social interests and benefit of the country.This paper can be divided into four parts:The first part is an overview of the plaintiff qualification of administrative litigation. This part consists of three elements: First of all, it explains the concept of plaintiff qualification of administration litigation, that is what the plaintiff qualification in administrative litigation really is. And it concludes that the plaintiff qualification of administrative litigation requires the three conditions as follows: first, there should be suable administrative acts; secondly, the rights and interests which are protected by law are infringed; thirdly, there should be interest relationships between plaintiff and the suable administrative acts, that is the administrative actions can fully influence the plaintiff. Secondly, this paper clarifies several similar concepts related to this topic, including plaintiff qualification and plaintiff, the relationship between the acceptance condition and prosecution condition, the relationship between the plaintiff qualification, the scope of the acceptance and the administrative litigious right. And then we can correctly understand the concept and connotation of the administrative plaintiff qualification. Finally, the paper describes the function of the plaintiff qualifications of the administrative litigation, including the balance value of administrative plaintiff qualification, a balance mainly among the adminisration, judiciary and the plaintiff. This balance value is a dynamic balance,which can change with the development of administrative litigation. Between the relationship of individual interest and public interest, the criterion of plaintiff qualification directly determines the rationality of the limitation between and individual interest and public interest; Between the relationship of executive power and judicial power,the realization of the judicial review to administrative actions and its level is largely determined by the existence of the plaintiff qualification.The second part is about the comparative study of the extra-territorial administrative plaintiff qualification. By reviewing the theory and practce of the administrative plaintiff qualification in the United States, France, Britain and Japan, the commonness and developing trend of foreign administrative litigation plaintiff qualifications are drawed out. From these commonness,we can conclude some developing trends: First, the standard is lowered from the traditional "right" to "interest" level; Secondly, recognize and enhance the judge's function of remedying law ; Thirdly, the link point between the subject and the damaged is weakened,showing out the trend of objective litigation. These commonness and the trends can also provide reference for China's administrative litigation plaintiff qualifications system.The third part is about the historical development and current situation of China's administrative litigation plaintiff qualification. First of all, it introduces the the three phases of China's administrative litigation plaintiff qualification development: from the "statutory standard" to the"legitimate rights and interests of relatively standard" to the " legal interest standard". And in accordance with relevant legislation, judicial interpretations and various factors of China's administrative litigation plaintiff qualifications, it reveals the current development situation of the administrative litigation plaintiff qualification. Secondly, it explains the current problems of China's administrative plaintiff qualification system, including: First, the plaintiffs qualification standards are chaos. Since there is no clear provisions in the Administrative Procedure Law, there is no agreed standard in China's administrative procedure law, academy circle can not agree with each other on this matter.Secondly, the scope of the qualified administrative litigation plaintiff is very narrow.Although some Chinese administrative procedure legal scholars wrote corresponding books on the basis of abroad experience, regarding rights as legal rights and interests of the simple fact. However, in practice, for various reasons, the rights is often limited to personal rights and property rights, other rights such as equal rights, political rights, the right to education and labor rights provided by the Constitution are not under relief and protection. Thirdly, the plaintiff can sue to the law only when their own interests are infringed. According to our current law, the plaintiff is a specific person, a fictitious person or other organizations. That is, only when their own interests have been violated can they be qualified, other than national interests, public interests. Fourth, the type of the plaintiff qualification is incomplete. This issue is very typical on the transfer of civil plaintiff's personal qualifications and the lack of organs litigation.The fourth part is about the perfection of China's administrative litigation plaintiff qualification system. First of all, we have to be updated in theory and concept in order to improve our administrative litigation plaintiff qualification and to reduce the limitation of "administrative actions", mainly for the abstract administrative action which includes the administrative legislation action. It is the action that the authorized administrative organs making administrative regulations and rule, and other abstract administrative actions. That is, the the actions of owning the rights beyond administrative rules and regulations,but has universal sanction. However,I believe that the abstract administrative actions beyond legislation should be fully included in the scope of judicial review. Then it introduces the theory of public rights so as to solve the practical problems that the existing theory has not yet satisfactorily solved. Finally, it is to establish the administrative public interest litigation and the corresponding plaintiff qualification system. The traditional theory of administrative litigation law limits the plaintiff qualification to the person who has direct interest with the case. From this piont, when the national interest and public interest are illegally infringed by administrative actions, the citizens can not safeguard the public interest by adopting justice means. The author recommends that the public administrative litigation which has not yet been protected by ligislation should be confirmed and the administrative litigation plaintiff qualification should be entitled to the prosecutorial organs, social organizations and individual citizens.
Keywords/Search Tags:Administrative
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